Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-61/2018
1. Mr. Yash Pal Maglani s/o Sh. L.C. Maglani
2. Mr. Karan Maglani s/o Sh. Yash Pal Maglani
Both r/o 70-C, MIG DDA flats, Motia Khan,
Pahar Ganj, New Delhi ...Complainants
Versus
OP1: Oriental Insurance Company Ltd
Through its Manager, Registered office
A-26/27, Asaf Ali Road, New Delhi-110002
Also at: Oriental Insurance Co. Ltd.
DO-9, Sunlight Insurance Building,
1/28 Asaf Ali Road, New Delhi-110002
OP2: Medi Assist Insurance Co. Pvt. Ltd.
Through its Manager, Tej Building, Plot no. 8B,
2nd Floor, Bahadur Shah Zafar Marg,
Next to Times of India, Delhi-110002
OP3: BLK Super Specialty Hospital
Building no. 5, Pusa Road, Rajinder Nagar,
New Delhi-110005 ...Opposite Parties
Date of filing : 23.03.2018
Date of Order: 08.06.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Vyas Muni Rai
ORDER
1.1. The present complaint has been filed u/s 12 of the Consumer Protection Act, 1986 by Mr. Yash Pal Maglani s/o Sh. L.C. Maglani (in short complainant no. 1) and Mr. Karan Maglani s/o Sh. Yash Pal Maglani (in short complainant no. 2) against Oriental Insurance Company through its Manager (in short OP1), Medi-assist Insurance Company Ltd. through its Manager (in short OP2) and BLK Super-specialty Hospital (in short OP3)
1.2. Complainant took Happy Family Floater Policy under the mediclaim policy with an insured amount of Rs. 6,00,000/- from OP1 on a fixed premium as mentioned in the policy document; policy continued since the last 9 years without any break having validity period of the last renewed policy from 21.04.2016 to 20.04.2017 being policy no. 2154000/48/2017/203; the name of insured are mentioned as Mr. Yashpal Maglani (self), Mrs. Bharti Maglani (spouse), Ms. Priyanka Maglani (unmarried daughter) and Mr. Karan Maglani (sibling) [copy of the policy document is at page no. 10-12 of the paper-book].
1.3. Complainant no. 2 i.e. Mr. Karan Maglani got admitted in the hospital of OP3 on 22.09.2016 for the treatment of fissure in Ano; and remained admitted in the hospital with effect from 22.09.2016 till 23.09.2016.
1.4 The medical expenses during the hospitalization of Mr. Karan Maglani was for sum of Rs. 75,000/-; complainant had given intimation to the OP2(third party) about the hospitalization of the complainant No. 2 but did not receive any response from OP2; therefore, complainant had to pay the said hospitalization charges despite of the fact that OP1 was under the obligation to pay the aforesaid expenses [hospitalization papers and bills of treatment are available at page No. 13-44]; and intimation to TPA-OP2 by the complainant is available at page 45 of the paper book; the claim bearing No. 13540028MAID5009249865 was submitted by the complainant to OP2 with all relevant documents provided by the OP3; and claim form was duly received by OP2 being the TPA of OP1 to clear the bills; but it has been alleged that OP1 and OP2 have not cleared the claim of the complainant (claim form regarding hospitalization of Mr. Karan Maglani is at page No. 41 to 45 of the paper book).
1.5 It has been alleged by the complainant that OP1, under the false inducement, incited complainant to take the policy having no intention to indemnify the claim of complainant; the complainant has been continuously taking the policy for last 9 years with effect from 2008 to 2017; and complainant no. 1- Mr. Yash Pal Maglani was the proposer in the policy; after 2017, complainant no. 2, namely Mr. Karan Maglani (son of the complainant no. 1) became the proposer (unpaginated copy of proposal form is on record). It is also the allegation of the complainant that OP1 never provided any terms and conditions of policy document and never informed that after attaining majority complainant no. 2 has to take independent policy or he has to become proposer.
1.6. The complainant has remained hospitalized on 22.09.2016 till 23.09.2016; which was duly intimated to OP but OP despite of the fact that policy was renewed even after rejection of the claim; he was denied of claim and the same was rejected. The OP without any reason denied to pay the hospitalization charges.
1.7. Complainant had asked OP to provide cashless benefit to the complainant but OP through TPA i.e. OP2 did not provide the same; complainant himself paid the hospital expenses; the complainant vide letter dated 10.01.2017 requested OP2 to clear the claim of the complainant but in vain; in the said letter dated 10.01.2017, complainant no. 1 has mentioned about submission of claim document of his son, namely, Mr. Karan Maglani/ complainant no. 2 [copy of the letter dated 10.01.2017 is at page no. 46 of the paper book] complainant also sent numbers of emails to OP2 seeking clearance of the claim [copy of email dated 09.02.2017 from OP and dated 23.03.2017 from the complainant are at page no. 47 and 48 of the paper book respectively]. OP in its email has also mentioned that son of the complainant no. 1 is of 27 years and is not covered under the family and he is not dependent [Annexure-C-5 (colly.)].
1.8. Complainant has further pleaded that while renewing the policy from time to time, on each policy cover note, it was clearly mentioned the age of the each insured person under the policy and thus, the age of insured was well within the knowledge of OP; as such after lodging claim with the OP1 and OP2; repudiation of the claim only on the ground that complainant no. 2 does not fall within the family is arbitrary and malpractice on behalf of the OP1 and OP2; despite paying the regular premium; and OP did not object while receiving the premium about the age factor of complainant no. 2; therefore, complainant has alleged deficiency and unfair trade practice on the part of OPs. It is also the case of complainant that OP issued and even renewed the said policy after verifying health, physical and medical status of the complainant ; therefore, rejection of the claim of the complainant prima facie, is illegal, arbitrary and mala fide.
1.9. The complainant also sent legal notice dated 13.10.2017 to the OPs but of no avail [copy of legal notice and postal receipt are at page no. 56-59 of the paper book]; though, reply of the legal notice on behalf of the OP1 through Sh. Ritul Jain and Associations was sent to the complainants raising objections therein [reply of legal notice dated 14.12.2017 of OP1 is at page no. 60-63 of the paper book].
1.10. In view of the fact aforementioned, complainants have prayed for issuing order directing OPs to pay amount of Rs. 75,000/- to complainants towards the hospitalization expenses; Rs. 2,00,000/- as compensation for mental agony, harassment etc., apart from Rs. 21,000/- as litigation charges.
2.1 OP1 and OP3 have filed their replies; OP2 was proceeded ex-parte vide order dated 08.06.2018 for want of apperance; OP1 in its reply has pleaded that complainant has not come before the Hon’ble Forum with clean hands and has concealed and suppressed true and material facts, therefore, the present complaint is not maintainable and the same is liable to be dismissed; it has been submitted that complainant no. 2, namely, Mr. Karan Maglani is sibling of complainant no. 1 as per the policy which was issued by OP1; as per the declaration and information furnished by the complainant to the OP1 at the time of renewal of policy; non-disclosure of material information by the insured at the time of taking the policy and/ or at the time of its renewal is in violation and breach of the condition no. 5.14 of the insurance policy which deals with fraud/ misrepresentation/ concealment; however, the issuance of Happy Family Floater Policy and its validity from 21.04.2016 to 20.04.2017 are admitted facts by OP1; OP1 has also submitted on record the policy documents having terms and conditions stated to be issued to the complainant which is marked as Annexure- R-1- page no. 1 to 14 of the reply.
2.2: OP1 in its reply has also relied upon case law i.e. Oriental Insurance Co. vs Sony Cherian II (1999) CPJ 13(SC) and case of Surajmal Ram Niwas Oil Mills Pvt. Ltd vs United India Insurance Co. Ltd reported as 2010 (10) SCC 567. It has also been pleaded that the complainant no. 2 is the son of the complainant no. 1 and not the sibling; it has been further submitted that terms and conditions of policy is part and parcel of the policy; and OP1 has issued the policy with its terms and conditions to the complainant; prior to filing the present complaint, complainant never raised the issue/ objection with OP1 regarding non-issuance of policy; cashless facility was denied as per the policy terms and conditions; it was duty of disclosure of material information by the insured at the time of taking the policy and/ or at the time of its renewal. Rejection of the claim of the complainant amounting to deficiency in services has also been denied.
2.3. OP2 was served on 10.04.2018 and was proceeded ex-parte on 08.06.2018 for non- appearance.
2.4. OP3 has also filed reply under signature of Dr. Sanjay Mehta working as Head Medical Services in Dr. BLK Memorial Hospital; OP3 has pleaded that complaint is not maintainable against OP3; denial of claim of complainant by OP1 does not construe deficiency in service or use of unfair trade practice by the OP3, therefore, the complaint filed by the complainant is not legally maintainable against OP3; essentially there is a dispute between the complainant and OP1 and OP2; and OP3 has been made party needlessly; OP3 is not legally liable to compensate/ reimburse any amount to complainant; as there is no deficiency in services on the part of the OP3; no relief has been claimed by the complainants against OP3.
3. Complainants have filed rejoinder to the written statement filed by OP1; wherein objections of the OP1 have been denied being false and frivolous; complainant has approached with clean hands and nothing has been concealed; OP1 having all the information at the time of receiving the premium and could have denied issuance of the policy; it is pertinent to mention that OP1 has also mentioned the age of each of the insured person and has not submitted before the Commission. OP1, to escape the liability has been submitting false and frivolous averments without any supporting document; copy of terms and conditions of the policy has not been supplied by the OP1; OP1 is seeking the shelter of the terms and conditions which was never been in the knowledge of the complainant, therefore, terms and conditions as stated by the OP1 are false and frivolous hence denied. OP1 intentionally not filed the declaration of by complainant submitted at the time of renewal of the policy; rest of the pleadings in the reply of OP1 have been denied by the complainant.
4. Complainant no. 1 has also filed his affidavit of evidence on the lines of complaint for complainant; OP1 has also filed affidavit under the signature of Sh. Ved Prakash, Senior Divisional Manager, in the company of OP1; Contents of the affidavit of OP1 are also the repetition and narration of reply; OP3 has also filed affidavit of evidence under the signature of Dr. Sanjay Mehta working as Head Medical Services in the hospital of OP3; and the same is on the line of written reply filed by OP3.
5. Complainants have filed the written argument apart from judgments which will be discussed at appropriate stage hereinafter; complainant has relied on the case titled New India Assurance Co. Ltd. Vs Sanjiv Kumar Goyal and also on the case of United India Insurance Co. Ltd. Vs MKJ Corporation [111 (1996) CPJ 8 (SC). Written Arguments filed by OP1 is narration and the repetition of its reply. OP3 has also filed the written argument being repetition and narrations of the facts/ pleadings of the reply filed by it.
6. We have considered the contentions of both the sides keeping in view the material on records, oral contentions on the point of law and evidence of the parties. At the outset, there is no dispute and has never been so, that OP1 is the insurer, complainant is insured, purchaser of Happy Family Floater Policy/ medi-claim policy with an insured amount of Rs. 6,00,000/- from OP1, OP1 issued cover note in favour of complainant no. 1, complainant no. 1 has been taking the policy continuously since last many years and also got renewed at appropriate time, the policy was without any break, the complainant no. 2 was admitted in hospital of OP3 from 22.09.2016 till 23.09.2016 during the continuance/ validity period of policy from 21.04.2016 to 20.04.2017; medi-claim submitted by the complainant in case of hospitalization of complainant no. 2 and his claim was denied by the OP. All these are admitted facts by the parties and have never been in the dispute.
7. The claim of the complainant has been rejected by OP1 on the ground of clause no. 3.14 of the terms and conditions of the policy [ claim denial email letter dated 07.05.2017 is at page no. 51 of the paper-book]. Perusal of the clause 3.14 shows that term ‘family’ has been defined in this clause. However, OP1 in his reply has pleaded that the claim was denied under clause 5.14 of the terms and conditions of the policy which deals with fraud/ misrepresentation/ concealment and has alleged that complainant had concealed and suppressed the material facts from the OP at the time of renewal of the policy to the effect that the complainant no. 1 had declared that the complainant no. 2 is sibling, whereas the complainant no. 2 is the son of the complainant no. 1; therefore, complainant violated and breached the condition no. 5.14 of the insurance policy and got the policy renewed by fraud/ misrepresentation/ concealment.
To counter this, the complainant in the body of complaint and also in rejoinder has vehemently pleaded that at no point of time complainant no. 1 has stated complainant no. 2 as sibling; complainant no. 1 has had at all points of time mentioned the relationship with the complainant no. 2 as son not sibling; however, if the word sibling appears in the policy paper; it was for the OP1 to get the same corrected, being its own document; OP1 is writer of the policy document; OP1 had never raised the issue of sibling at any point of time and even at the time of renewal of the policy. It is also the stand of the complainant that OP1 was having all the information at the time of receiving the premium and at the time of issuance of policy; OP1 was very much aware about the age of each of the person insured; Complainant has also pleaded that he has not submitted any declaration at the time of renewal, as has been alleged by OP1.
8. It is also the case of the complainant; as is reflected from the record that OP1 did not supply any terms and conditions of the policy neither at the time of the issuance of the policy nor at the time of renewal; OP1 in its pleadings and affidavit has submitted that copy of the policy having terms and conditions was supplied to the complainant but has failed to place on record any documentary proof to substantiate its stand in this regard.
9. We also find on record a letter dated 10.01.2017 [ page no. 46 of paper-book] from the complainant addressed to OP2[TPA] stating therein that complainant no. 2 is his son and not the sibling. The said letter was acknowledged by one Ritika having mobile no. 9599689866 on 10.01.2017 itself. Not only this, in the claim form relationship between complainant no. 1 and complainant no. 2 has been mentioned as son [copy of claim form is at page no. 41-43 of paper-book] in his email dated 23.03.2017 complainant has given the details of the each of the insured person and in that mail also Mr. Karan Maglani- complainant no. 2 has been shown as son; complainant has further mentioned in the said mail that he does not know how the insurance company has mentioned complainant no. 2 as sibling. He has never given in writing that Mr. Karan Maglani is his sibling. This has been done/ mentioned by OP1. Complainant has also given several reminders for settling his claim but in vain [copy of reminder are available at page no. 53, 54 and 55 of the paper-book]. In the proposal form submitted on record; Mr. Karan Maglani [complainant no. 2] himself is the proposer and details of each insured has been given in the proposal form wherein relationship with Sh. Yashpal Maglani [complainant no. 1] has been shown as father.
10. OP1 has relied upon Oriental Insurance Co. vs Sony Cherian II (1999) CPJ 13(SC) and on Surajmal Ram Niwas Oil Mills Pvt. Ltd vs United India Insurance Co. Ltd reported as 2010 (10) SCC 567 but these two citations having diffrenet facts and ratio on compare to this case.
11. The complainants has relied upon New India Assurance Co. Ltd. Vs Sanjiv Kumar Goyal and also on United India Insurance Co. Ltd. Vs MKJ Corporation [111 (1996) CPJ 8 (SC); in this case the insured was supplied only the cover note and schedule of the policy; the claim was repudiated on the ground that the insured contravened condition in exclusion clause; it was held that the exclusion clause not included in the policy nor disclosed to the insured; and the insurance company cannot claim benefit of exclusion clause. It has been also held that the repudiation of claim on the basis of exclusion clause when the terms and conditions of the policy was not supplied to the insured attracts deficiency in services.
12. Based on the detailed discussion and considerations, we are of the considered opinion that rather non-supply of the terms and conditions of the policy either at the time of entering into the contract of insurance by the parties or at the time of renewal of the policy would construe non-disclosure on the part of OP1. It is settled law that if the policy documents having detailed terms and conditions is not supplied to the insured; insurer cannot take the shelter of the clause of the policy document to repudiate the claim of the insured persons; in the present complaint insurer has placed no credible evidence on record to show that condition no. 3.14 and 5.14 was ever supplied or explained to the complainant/ insured at the time of submissions of the proposal form by him.
13. We have perused the reply and submissions made on behalf of OP3 and perusal of the same reflects that no liability arises on part of OP3 nor any relief has been claimed against OP3 by the complainant.
14. In view of the aforesaid discussions, deliberations and by taking of all these circumstances, it is established that complainant no. 1 at no point of time has mentioned/ shown complainant no. 2 as his sibling; rather stated as his son since beginning, however, it is OP1 who has mentioned in its policy document complainant no. 2 as sibling of complainant no. 1, therefore by doing so, OP has intended to hide its own wrong while processing and rejecting the genuine claim of complainant. On this basis, we do not find any fault to this effect on the part of the complainant.
15.1. Based on the above analysis and narration, complainant has succeeded in establishing his claim while OP1 has failed to establish its case by way of credible evidence; therefore, the complaint is allowed in favour of complainant and against OP1 with following directions:-
(a) to pay a sum of Rs. 75,000/- along with interest at the rate of 6% pa from the date of filing of this complaint till its realization; besides damages/ compensation of Rs. 20,000/-; and litigation cost of Rs. 10,000/-. The amount will be payable within 30 days from the date of receipt of this order;
(b) in case, the amount is not paid within 30 days the rate of interest will be at the rate of 7% pa in place of 6% pa on amount of Rs. 75,000/-.
15.2. Similarly on the same analysis, no order against OP2 being TPA. However, complaint against OP3 is dismissed.
16. Copy of this Order be sent/provided forthwith to the parties free of cost as per rule for necessary compliance.
17: Announced on this 08th June, 2023.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
